Letter of Support: Inhofe-Upton EPA GHG Preemption, S. 482 and H.R. 910

March 04, 2011 J

Dear Senator Inhofe and Congressman Upton,

On behalf of more than 1.7 million Americans for Prosperity activists in all 50 states, I am encouraged by your legislation (S. 482 and H.R. 910) to clarify that the EPA has no authority to regulate greenhouse gases (GHGs) under the Clean Air Act. The Obama administration’s attempt to use a decades-old statute to advance climate change policy via an unaccountable and unelected bureaucracy must be stopped. Your legislation is a good step toward ensuring Congress makes the laws in this country, not bureaucrats.

I urge you to consider adopting a broader position to include other federal statutes that are also being misapplied in an attempt to regulate GHGs. The Endangered Species Act, the Clean Water Act, the National Environmental Policy Act and common law nuisance suits are all being targeted as vehicles to install climate change policy by those who are frustrated by the legitimate legislative process.

The American people have spoken out loudly and repeatedly against the higher energy costs and lost jobs that would result from the EPA distorting the Act to regulate GHGs, something it was never designed to do. Despite massive congressional majorities over the past few years, President Obama was unable to push climate regulations through Congress. In fact, the American people were so outraged at the proposal that numerous cap-and-trade advocates lost their reelection bids. The federal government must respect the will of the people, and ignoring their opinion on something as monumental as a national energy tax—housed in either a legislative cap-and-trade scheme or through the Clean Air Act—risks further debasing the public’s faith in government.

The Clean Air Act is a blunt regulatory instrument that was never intended or designed to handle GHGs. One of the Act’s original authors Rep. John Dingell (D-Mich.) confirmed as much, stating:

“We are also looking at the possibility of a glorious mess being visited upon this country … [because in] Massachusetts v. EPA, the Court stated that it believed that greenhouse gases are ‘air pollutants’ under the Clean Air Act. This is not what was intended by the Congress and by those of us who wrote that legislation.”

Dingell’s insistence that Congress’s intent has been supplanted by zealous regulators and Supreme Court justices underscores the importance of your effort to have Congress clarify that the EPA does not have the authority to regulate GHGs under the Act.

However, Dingell’s statement is not the only evidence that Congress never gave the EPA this authority; the structure of the Act also supports this position. There are several sections of the Act that make it inapplicable for GHG regulation.

First, the EPA is currently attempting to limit their GHG efforts to only PSD, Title V and NSPS for large stationary sources. However, the Act makes clear that regulation of a “pollutant” under one section of the Act makes it subject to regulation under all sections. This means that the country is only one lawsuit away from an extreme environmentalist forcing the EPA to issue NAAQS for GHGs. These standards would be simply impossible to achieve because of the way GHGs distribute evenly across the globe. No matter what concentration threshold is established for NAAQS, a locality will never be able to reduce its local emissions low enough to achieve that threshold. Distant GHG emitters will unendingly raise the local threshold and trap the locality in nonattainment. This fundamental difference between how GHGs behave and how pollutants traditionally regulated under the Act behave is evidence that the drafters never contemplated the Act being used for GHGs.

Second, the EPA’s attempt to “tailor” the PSD and Title V applicability thresholds constitute an unauthorized and unilateral rewrite of the EPA’s statutory authority, something you must stop them from doing. In the Tailoring Rule, the EPA admits that applying the Act as written by Congress would create “absurd results’ and an administrative nightmare. This is further evidence that Congress never intended the Act be applied to GHGs, not evidence that the EPA should be allowed to take a legislative editing pen to its own authorizing statute. I am pleased to see that your discussion draft repeals the Tailoring Rule.

Thank you for introducing legislation to clarify that the EPA does not have the authority to regulate GHGs under the Clean Air Act. It is unfortunate that your legislation is even necessary, but it seems that the EPA is committed to stretching its delegated authority beyond the breaking point. I hope that you will consider addressing the other areas of the regulatory state where other statutes are being similarly contorted.


James Valvo
Director of Government Affairs
Americans for Prosperity

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